Friday, June 22, 2007

First Amendment Protects Posting of Unlawful Video

An important decision of First Amendment and Internet law came down today from the 1st U.S. Circuit Court of Appeals: Jean v. Massachusetts State Police. The court ruled that the First Amendment prevents law enforcement officials from interfering with an individual's Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, even though the individual had reason to know the recording was made illegally.

The case involves Mary T. Jean, a Worcester political activist who maintained a Web site critical of former Worcester District Attorney John Conte. In October 2005, Paul Pechonis contacted Jean through her Web site. He said that on Sept. 29, eight armed State Police troopers arrested him in his home on a misdemeanor charge. After handcuffing him at his front door, the officers conducted a warrantless search of his entire house. A motion-activated "nanny cam" caught the incident on tape. Pechonis gave a copy of the tape to Jean, who posted it on her Web site.

After State Police officers learned of the posting, they wrote to Jean telling her that her posting of the tape was illegal. They gave her 48 hours to take it down or face prosecution. A month later, the police "clarified" the previous letter to demand that she take down only the audio portion of the recording.

Citing the First Amendment, Jean went to federal court seeking a TRO and an injunction against the police and the attorney general. The district court granted the TRO and, after a hearing, entered a preliminary injunction. The police appealed.

In today's decision, the 1st Circuit affirmed the district court, relying on Bartnicki v. Vopper, 532 U.S. 514 (2001), a case in which the Supreme Court found that the First Amendment protected the replaying of an intercepted cell phone conversation concerning a matter of unquestionable public concern, when, although the interception was unlawful, the possessor of the tape obtained it lawfully. That precedent controlled here, the circuit court said:

"We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection."

You've got a very tough decision as to where to go with this, because Federal judges are so powerful, who will police them, or even try? But seems to me you have to go to court and try to complain directly. The lawyer or other party who was talking to the judge improperly may be subject to Bar discipline, and if so, may want to deal, since he/she hopefully can not count on the same protections a judge will get.

We got laptops in school, which included a web cam. During class my friend and I took a video of us making funny faces. I posted that on my youtube account. The next day I got in trouble at school (two days of in-school suspension) because my teacher's voice was in the background, and I didn't have her permission to put it on the internet. She said that what I did was illegal, is that true?

In the 2010 Supreme Court Case, United States v. Stephen, Stephen was defending himself against convictions for posting and selling videos of illegal dog fighting. He had been found guilty by the District Court. Appealed. The original ruling was then overturned by the Third Circuit, citing the original conviction was in violation of the First Amendment. The United States Government then appealed to the Supreme Court.

The supreme court agreed with the Third Circuit’s discussion, stating:

“The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002)”

They went on to say:

“The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.”

This could also be applied to Jean v. Massachusetts State Police since the Massachusetts State Police are attempting to restrict Jean’s freedom of speech, and would most certainly benefit from this type of balancing test proposed by the Government.

However, the Supreme Court rejected this idea entirely, stating that:

“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).”

With that said, in addition to citing the similarities of this case to the 2001 Bartnicki v. Vopper case (showing that it is not illegal to post intercepted material concerning a matter of unquestionable public concern), it is also important to note that while the act itself may be illegal or wrong, the First Amendment still protects the sharing of material (with the exception of Child Pornography and a few other select categories) with the public. The First Amendment is in place to protect American’s free speech from government regulation, just like Ms. Jean faced with the letters from the Massachusetts State Police.

Although the case United States v. Stephen came roughly 3 years after the judgment of Jean v. Massachusetts, it does reference two cases that came before it – one in 1803 and one in 2002, that both set the precedence for the First Amendment and it’s purpose in defending free speech from the government.

These could also be called upon should the Massachusetts State Police decide to appeal to the Supreme Court.